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tv   The Presidency and Impeachment  CSPAN  November 25, 2018 9:00am-10:03am EST

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>> next, on american history tv, constitutional scholars philip bobbitt and akhil reed amar discuss and interpret how the u.s. constitution defines impeachable offenses for the president. philip bobbitt, who was legal counsel to the senate select iran-contra committee, is co-author of "impeachment: a handbook, new edition," which was originally published in 1974 during the watergate crisis by the late charles black. the new-york historical society hosted this hour-long event. [applause] alex: good evening, everyone. welcome to new-york historical society. i am alex kassl. i am manager of public programs, here. as always, it is a thrill to welcome you to our robert h. smith auditorium. tonight's program, "the presidency and impeachment" is part of our bernard and irene
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schwartz distinguished speaker series, the heart of our public programs. as always, we would like to thank mr. schwartz for his support, which has enabled us to invite so many prominent authors, historians and legal scholars here to new-york historical. i would also like to recognize and thank our trustees, patricia klingenstein, richard reiss, barry barnett, and alan shuch, as well as all of our chairmen's council members who are with us for all of their great work and support. tonight's program will last an hour and it will include a q&a session -- a question and answer. as you were coming in, we had some of our volunteers in the audience handing out cards and pencils. if you did not get a card or a pencil, staff members -- myself included -- will be circulating through the auditorium and giving those out. we will collect those later in the program and then hand those off to our moderator so they can answer some of your questions later on. and, also, there will be a book-signing tonight with philip bobbitt and akhil reed amar. they will be signing books out in our smith gallery and that is also where the books will be for sale.
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our museum store set up a little kiosk out there where they will be selling the books, so we do hope you will join us for that. we are very happy to welcome back philip c. bobbitt, the herbert wechsler professor of federal jurisprudence at columbia university school of law and the director of the columbia center for national security. he has served as an associate counsel to the president, the counselor on international law at the state department, legal counsel to the senate iran-contra committee and as senior director to the national security council. he is the author of the new material in the expanded edition of charles l. black's "impeachment: a handbook." we are also pleased to welcome back akhil reed amar, this evening. he serves as sterling professor at of law and political science at yale university. he is the author of several books on american law and the constitution and wrote the foreword to the second edition of charles black's "impeachment: a handbook." in 2017, he received the american bar foundation's outstanding scholar award and the howard r. lamar award.
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we are very grateful that professor amar is also member of our board of trustees. our moderator for this evening you is benno schmidt, the former president of yale university and former dean of columbia school of law. he was the principal author of the 1974 book published by the association of the bar on the law of impeachment and removal. he is also served as the ceo of edison schools and is among the world's innovators of education. we are very grateful he is also a member of our board of trustees. before we begin, we ask that you silence any cell phones. please join me in welcoming our guests. [applause] impeachment, the
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text is pretty straightforward. it states the house of representatives should have the sole power of impeachment. , plus six of the same article ads, the senate shall have the sole power to try all impeachment's. when the president of united states is tried -- no person shall be convicted without the concurrence of two thirds of the members present. states two section four the incident, vice president and all civil officers of the united states shall be removed from office on impeachment for an briberyon of treason, or other high crimes or
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misdemeanors. philip, let's start with what might be certainly one of the most fundamental questions we could ask about the process of impeachment and removal. is it a political process or a legal process? philip: i think it is a legal process. that is the point we should insist on. it is not obvious -- the body that tries the senate is a political body, the senate. the body that indicts is the legal body. but the text you just read specifies that whatever the grounds for impeachment in the house, and those are legal in nature, specified, treason, bribery, other high crimes and
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misdemeanors, those are legal criteria. whatever the indictment, the proceedings in the house, the senate must try the case. that is not a term we use in politics, it is a term we use in law. that chief justice presides, as you heard. he is a judge. he convenes and conducts judicial proceedings. senators who sit as a jury must take a special oath which specifies that they must try the case according to law. so the talk i hear sometimes in journals, on the electronic media, this is not really a legal proceeding cover it is a
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political proceeding and that is at best a half truth, and a very insidious one. because along that path lies impeachment which divides along party lines and undermines, i think, the rule of law. benno: do you agree ? philip: some further support for this idea? akhil: it is a mixed process, as philip told you, it partakes of the political, in particular, misdemeanors, i don't think it is a technical criminal term, i think we can think about it as misbehavior of some sort, violating a technical criminal law for definition of a crime might be neither necessary for sufficient, but here are some words, which are very much law words. and i will give you one final point -- in article one section three, judgment in cases of impeachment shall not extend further than blah, blah, blah --
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and again come i took some of party convicted shall nonetheless be liable -- liable to punishment according to the law. we are talking about punishment in cases of impeachment and judgment. here is one other way to say it. high crimes and misdemeanors is a bit of a term of art and not an ordinary criminal law term, that is why is not given to an ordinary judge or jury. but here is one easy way to see how it cannot merely be enough that you politically don't like the fellow, whether it is a president or someone else. let's take the president, because this is a particular president. the constitution says that in order to overcome a presidential veto, he has to have two thirds of the house and two thirds of the senate.
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surely, it cannot be the case that the constitution is set up so that you could be tour around about by getting rid of the vetoer himself just because of a good-faith policy agreement because you have a two thirds majority in the house and senate. it is a lower vote than it is to overcome a veto, but that is because it is not a mere policy disagreement. he has a good-faith view on policy, you have a different view -- andrew johnson, the first president in a the impeachment crosshairs in a serious way, his veto was over, -- overcome about 15 times. and yet, it was only at the end of the process but he eventually was impeached and ultimately acquitted, even though they were overturning his vetoes are again and again and again. mere good-faith vetoes cannot be
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a high crimes misdemeanor, and that is in the structure of the constitution as well as the text. we ended up at the same law school and we are all students of the great charles black, who would want to focus not only on the text, but the structure of the constitution. benno: i should mention that andrew johnson was impeached for trying to fire the secretary of war stanton, and in doing that, he violated an act that said that certain positions, including the secretary of war, the person holding that office could not be removed by the president without the advice and consent of the senate. that is itself plainly unconstitutional. akhil: the tenure of office act. benno: yes, because a president cannot be an executive in office unless he can fire those who work for him.
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akhil: and washington insisted on that. the first congress agreed with him. benno: right, and you cannot have it any other way unless you have an executive. there is one very large consequence to the argument that philip and akhil have, with which i completely agree, that impeachment is a legal proceeding and not purely political. the essence of a legal proceeding is that like cases have to be decided like. so the grounds of impeachment have to be -- if you impeach a president whom you don't like, who is not of your party, with whom you have areas disagreements, you have to be prepared to say that you would also impeach a president that you did like, of your own party, who had undertaken the same set
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of actions within the definition of high crimes and misdemeanors. we should say quickly, the first two crimes laid out in the , treasonnt provision and bribery, are quite simple in definition. there may be acutely complex evidentiary questions, particularly around bribery, but the constitution defines treason narrowly. we know what bribery is, the element of quid pro quo for something valuable bestowed, an official act -- so i take it that we would disagree with gerald ford when he was speaker of the house in the potential impeachment of william douglas, that grounds of impeachment or whatever the house says they are on any particular day.
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philip: i think even president ford regretted having made that often quoted remark. i think when people drift into the abyss, it is over the case -- phrase "high crimes and misdemeanors." these are not crimes, that you find in title 18 of the criminal code. but that doesn't mean that they are something you can really concoct. one of charles black's arguments is an argument you would've heard in the courts of this country many times in the 19th century. it relies on a latin phrase, something that law students used to always study, and it simply means "things like about."
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so if i say, i would like you to go to the store for a party tonight, please get some whiskey, some gin, some wine, some beer, and you come back with a corvette, i think you were not really following my instructions. this is crucial for this potent phrase -- treason, bribery and other high crimes and misdemeanors. so whatever they are, these high crimes, crimes against the state, crimes that threaten the integrity, vitality and stability of the state itself, must be like treason and bribery. and that doesn't mean that they can be just whatever the hell you would like them to be some of because you are so vexed at the incumbent. benno: one other element of that is a violation of public trust.
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now, philip, do you think that for impeachment and conviction and removal to be valid, there has to have in a crime crime --, and actual an actual crime ? philip: i don't think that, and one reason i don't think that, is because aaron burr was indicted for murder both in new york and in new jersey after his notorious duel with alexander hamilton. he fled and then he went back to washington and continued on as vice president. akhil: and furthermore, he presided over the impeachment trial as president of the senate, of justice samuel chase. philip: for which he was widely praised.
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akhil: leading one to say that in most countries, murder is arraigned before the judge -- here in america we have the judge being arraigned before the murderer. [laughter] philip: you can see how we fell sometimes these mistakes feed on each other. if you think high crimes and misdemeanors is an open it invitation to a political trial, then you will want to a cabin that my saying, well there must be some underlying crime. in fact, instead of drawing the circle tighter, you have really just made the second error prompted by the first one. benno: so it criminal act, for example, a president to announce that he or she was going to rome
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for a six-month holiday and would do no public business, that would not be a crime but it would certainly an impeachable offense. a violation of the public trust that any president has with the people, which is to do the work of a country, and not go to rome for six months. akhil: and also the demeanor, how one behaves, we could think of it as a certain kind of gross misbehavior of a certain sort. whether or not strictly speaking, criminal in the ordinary sense. neither necessary, nor sufficient. it is a slight difference than an ordinary crime. benno: one of the interesting questions about this matter from other has to be some element of violation of the public trust, is -- what about a serious crime committed by a president before he or she was elected president? for example, tax evasion. [laughter]
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i mean, we have an example of it just the other morning, i picked up my "new york times" and read that the president may have been guilty of of aiding almost $500 million of taxes, i mean, a huge amount. but that was a long time ago. do you think a criminal act, although that may not be proven, but if it were proven, do you think there would be grounds for impeachment? it happened almost 30 years ago. philip: i don't think so. hamilton, in a number 65 of the federalist, he says it must be a political crime. i don't see tax evasion in that category, and i don't see that you can be impeached for something decades before you took office. having said that, if a candidate
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for office were to engage in some kind of conspiracy to pervert the course of an election, we would not want the candidate to be the beneficiary of his or her wrong, so that the election process itself, though it was perverted by someone not yet in office, i think it could be a predicate for impeachment. benno: by the same token, if a president who was not part of this conspiracy was the beneficiary of it, through no wrongdoing of his own, who once in office tried to prevent the investigation of the conspiracy, i think that would be a predicate for it. philip: i do agree that private tax evasion. akhil: idea from it.
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invading wants taxes as president, and using the irs to avoid detection, that starts to look like an abuse of government power. philip: one of the charges against nixon was that, $400,000e had of faded worth of taxes from the she had emitted for under thousand dollars worth of taxes while president. and the house did not go for that as an impeachment offense. akhil: there but for the grace of god go many of them that may have thought to had this is politicians and judging other politicians, and you don't want to set the bar too high, because what goes around comes around for president. but here is where i have a slightly different take. if treason is committed by a very young man or woman, but --
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and then much later, that person becomes president, i think i would take the position. because treason, even committed by a private person, is the most obvious threat to the integrity of the state. i might take the position that it was impeachable. now, what did the voters know, and when did they know about it? have they ever cured some deep crime in one's past by approving a vote? here is one hypothetical -- philip mentioned, there is actually a precedent on that. since we are talking about law, the things of that the senate have actually done, tried impeachment, are indeed precedents of a certain sort.
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i testified against a very corrupt judge from new orleans in the senate judiciary committee. he took all sorts of bribes as a state judge. he became a federal judge and actually was acting in improper ways. by that was hard to prove. his defense was -- nothing i did an article three judge can count, it is only my official misconduct. and i took the position, and of the house agreed with me, you lied it during your confirmation hearing. you weren't a federal judge yet, but lying in order to get this job was surely impeachable, and not just what happened after you took your article three oath of office. and the house agreed with me.
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benno: this raises a couple of questions. first, the issue of treason. by that reasoning, none of the officers of the confederate army could have served as officers of the united states. would have been vulnerable to impeachment. that seems to me it proves too much. in terms of that example of the judge, i think we all agree, because we discussed this before, that the standards for impeaching a judge are different. akhil: this point is very important. let us actually talk about it a bit. benno: let's talk about whether acts that are impeachable may n -- given the office
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of the person who may have committed the act. while it may be not impeachable for a president, it might the impeachable for a federal judge, for example. philip: there is something galling about asking someone who has been tried and sentenced by a judge who is known to have lied in a tribunal. it undermines his authority. it makes the system seem as though it has been fouled before the trial even started. when there is a supreme court justice who, like you hugo black, one of our great justices, may have misled the senate when he denied that he was a member of the ku klux klan, -- i think it is a different issue. the president is in one box, he is a politician and not a judge.
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a supreme court justice is in one box, he is a trial judge, someone will actually decides facts on crimes and criminal cases. the text is the same, but the structure is different. akhil: so another way of saying that point -- charles black's book, which in its newest addition, there is a whole new section by the professor, and i commend this book -- benno: very important book, especially philip's edition.. akhil: it is very slender and easy to read and it is about all the precedence on presidential impeachments. when we say structure, here is one example of what we mean. when the senate of the united states, as an impeachment court votes to convict, let's say, a
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cabinet officer, or a judge, they are voting to undo a commission that they basically participated in. they made that person by their advice and consent, a cabinet officer, a judge. it is one thing to undo their own -- the judge became a federal judge because the senate made him a judge, and he lied to them in the process. it is one thing to undo an action that you yourself help to make. it is a very different thing for the senate to undo a national election. i just made a structural argument, it is not a textual argument. as philip and benno told you, the text reads the same. treason, bribery, high crimes and misdemeanors. it does not distinguish between judges, presidents, cabinet officers.
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the structures are very different. benno: let us turn to some factual situations that have in rattling in the news of late. philip, do you think electronic hacking into the emails of the democratic national committee in 2016 before the last presidential election, is that comparable to the break-in at watergate, where the plumbers crew planted microphones into the office of the democratic national committee? philip: i think it is virtually identical. the methods are different, but the ingenuity of burglars is always cutting edge technology. [laughter] philip: i think it is very much the same.
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benno: so if it could be shown that a president authorized or w about in advance and did not stop such a hacking or encouraged it, colluded in it, that would be an impeachable offense in your view? philip: i think that it's right it is important to realize that doctrine and precedent are not confined to courts. that the action of the senate and the house, the action of presidents and policy, all provide constitutional precedence. i would answer a question you do not ask their weird i would say, of course you are right, that a president who contrived to have the headquarters of the opposing party burgled and their private documents purloined and published and used in some intimidating way, would be subject to impeachment.
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but i would also say, from the nixon precedent, that a president who contrived to have the actions of such burglars not investigated, or who used the federal government to mislead the investigators, even if -- i think this was true of nixon -- even if he was not aware or had not directed or planned the original burglary, yes, i think that would be a predicate for impeachment. akhil: here is one other very important element of the nixon precedent. it is different say, from the clinton precedent. i almost said the clinton affair, and you were going to laugh, which is why i didn't say that -- nixon was brought back and ousted by a bipartisan process in which at the end of the day, he had to go because members of his own party said
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so. great people like fred thompson, howard baker -- at the end of the day, like mr. republican barry goldwater, who told president nixon, "you don't have even a dozen votes in the senate and i am not with you anymore, mr. president," once the smoking gun tapes came out -- it only takes a simple majority in the house, but it takes two thirds of the senate and in today's world, that will mean a buy-in from both parties. >> and i think it is abusive for the house to begin a process in hyper partisan ways because you will not be about to get a conviction. now clinton, democrats never bought into the impeachment in the house, so very predictably,
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you didn't get anything close to two thirds in the senate. so i am a foe of partisan impeachment. i would be a foe of partisan impeachment of this president that i floated against and less members of his own party are on board. senators take an oath to do impartial justice. imagine what you would do if the political shoe were on the other foot, which is a deep theme of charles black's book. it is ordinary to say well, that is my party, it is the republican platform to do this, it is the democratic platform to do that. i don't love obamacare, but this is what we promised; or, it is not a perfect tax-cut, but this is what we promised.
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but that is not what impeachment is about, it should not be partisan. benno: the first question put to us is so crucial. if impeachment were just a political question we would not be disturbed by a breakdown in the senate or the house, we would expect that it. but if you went to a jury or a panel of judges and found that their assessments broke down along strictly partisan lines, you would be apalled, or you should be. [laughter] how about the disinformation campaign by the russians to help one candidate and hurt another candidate in the presidential election? if it can be to shown that the candidate favored by the
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russians colluded or encouraged that activity by the russians in some way, would that be an impeachable offense in your view? philip: probably, it would depend on who the foreign power was? what the extent of the conspiracy was, the candidates knowledge, but yes, perverting the course of an election by siding with a hostile power goes right to the heart of the grounds for impeachment outlined in the federalist papers. i think and i hope my colleagues agree -- i would be surprised if they disagreed -- but the federalist papers are perhaps our best resource for what ratifiers really intended. benno: i would agree with that.
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could a president be lawfully impeached for directing his subordinates to mislead investigators or not cooperate with investigators with respect to investigations related to activities in a presidential campaign? philip: i don't think there should be much doubt about this. we sometimes hear commentators say, very sophisticated commentators who say -- that because the president has the discretion to direct the agencies to commence or drop investigations, or proceed among such promising lines or drop lines that might threaten foreign relations; or may be less promising, other complexities -- because he has that discretion, he, therefore, cannot possibly be impeached for doing something less than that
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simply by saying, let's shut down this part of the investigation. i don't see it that way. it seems to me that a president who took the heat for turning off the investigation is in a very different position with respect to the public than one who tries to use the officers of his administration to mislead investigators, or to announce public things that are not true, as the alleged result of their investigations. sometimes you will hear people say that a president cannot possibly obstruct himself. and, of course, that is probably true. but he can obstruct the operations of the government. it is like the old joke -- someone is asked, do you believe in baptism? and the man says, believe in it? hell, i have seen it done!
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we saw this at watergate, and i don't think there is much question that a president could be impeached on that basis. benno: could the presidential use of pardon power either bases of impeachment? philip: i think it would depend on what basis the party was given. some people would say, the pardon power is unlimited and therefore, it would be an implicit limitation on that text. were we to impeach for any use of the power. but think about it for a minute, is it possible that you could secure a pardon for a bribe and that bribery would not be a predicate for impeachment? i think that is nonsense. akhil: because the text itself says "treason, bribery or other high crime or misdemeanor." that is right down the fairway.
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of course, bribery is impeachable, even if the briber -- bribe is to get a pardon. benno: suppose the reason for the pardon is not a bribery, but so that a party that is being pardoned has no incentive to cooperate with investigators -- what about that use of the pardon power? philip: if the person who is pardoned is an official, that is a bribe. we think of bribery simply in terms of the president taking a bribe, but he is also forbidden from offering a bribe. benno: can a president pardon himself? [laughter] philip: i think it is nonsense, i cannot imagine it being lawful for a president to pardon himself. it is not only that we have these long-standing, cultural
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convictions that go back beyond the founding of this country. the lawyers in the audience know this phrase -- no man may be a judge in his own case. there are many other reasons why we would not permit a president to pardon himself. the language of granting a pardon, we don't typically grant things to ourselves. but if you step back and say, how outrageous that would see. -- how outrageous that would be. professor, i think i just heard you say it, take the example of a president who is pardoned -- whose pardon, procured by a private, is impeached, then he pardons himself -- [laughter] benno: zeno's paradox.
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akhil: i will tell a lawyer joke -- well a law joke. ordinary people don't think they are funny, and neither do lawyers -- so who presides, -- this is a law joke. who presides over the vice president's impeachment trial, if you actually read this literally? he is tried by the senate, and he is a presiding officer of the senate. and of course, it cannot be the case that the vice president presides at his own impeachment trial. it was so obvious that it went without saying, or they didn't say it. here is what they said, when a president is tried, the chief justice presides. why? because who otherwise would have presided, it would've been the vice president who stood to
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gain. that you get to be said. it wasn't entirely clear. you would have this insurmountable conflict of interest. but because it was slightly different than presiding in your own case, that needed to be said. but nobody thought it needed to be said that you could not presiding own case, of course you can't. that is what the essence of the rule of law his. goes all the way back to cicero in roman times. if you cannot be a judge in your own case, you cannot be a pardoner and your own case either. it is the first principle of the rule of law. benno: the framers and ratifiers did not specify some of these bars because they thought better of us. [laughter] what about an accusation of
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criminal behavior against your political opponents or candidates, opposing candidates? do you think an accusation of criminal behavior that was unfounded and known to be unfounded at the time it was made by the accusing party, do you think that would be an impeachable offense? >> i think it is a matter of degree. if you were to try to intimidate your political opponents by threatening to criminalize the behavior, throwing them in prison, claiming that they have committed a series of crimes, and you made these claims with a reckless disregard for the facts, that seems to me the kind of thing that would really pervert the
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electoral process. and that is at the heart of a constitutional crime. not an ordinary crime, although, it might very well be a tort to say that someone is guilty of a crime without any evidence, or in the teeth of contrary evidence. benno: before we turn to questions, how does the 25th amendment relates to impeachment? philip: the 25th amendment, probably everybody in here knows, was a consequence of the assassination of president kennedy, the concern that if the president had lingered for some months, as a james garfield did before his ultimate demise, that the government would have been in this kind of shadow world. we know more now about president wilson's disability than what people did at the time. president johnson, lyndon johnson had a very serious heart attack back in the 50's, and it is not inconceivable that he could of had another one that killed him just a couple of
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years later after he left office. he might've had a stroke that incapacitated him. so the people of his generation became concerned about this after the kennedy assassination. that we ought to find some way to legitimate the removal of a president who is unable to carry out his duties. by providing a specified legal process for doing so. that was the intent of the amendment. i don't have much doubt about that. but the language is broader. the language is not limited to a physical disability. there have been some people in the last few months was suggested that this is an alternative route to impeachment. i am skeptical of this myself, but the text is there. what do you think, akhil? akhil: were they thinking about mental disability.
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benno: one of the provisions of the amendment says that even if a president does not agree that he or she is a disabled, that if the vice president and a majority of the cabinet come forward and say -- philip: or a group specified by congress -- benno: if they come forward and say the president is disabled, then the congress can add on -- act on that disability. akhil: two things -- maybe three things, to remember. first, we are talking now about possible mental disabilities that that carry no imputation of wrongdoing. it is not a have done something wrong, it is just that you cannot discharge the duties. so it is not moralized the way that actually trials and punishment in cases of
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impeachment are. so it is very different, it is not moralized. it pivots entirely on the actions of the vice president. if the vice president is not on board with this, nothing can happen, under the 25th amendment. the vice president has to put him or herself forward. third, if the president disputes it, at the end of the day, congress decides, and there have to be two thirds of each house. so in some ways, it is a lower it doesn't require misconduct, but it requires a higher vote in the senate and the house as well, in order to prevent this from being too easy and end around impeachment. benno: let us turn to questions from the audience. must a trial in the senate apply particular rules of evidence?
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could a president be convicted on the bases of hearsay, for example? philip: well, i would be happy to defer to my colleagues here because i don't know the slightest thing about criminal trials, and evidence, but as a constitutional lawyer, yes, i can easily imagine the rules of evidence not being of the same stringency and rigor that we have in an ordinary criminal trial. what we are trying to determine is a political crime, not politics, which is still something that strikes at the heart of the state. many of these acts are not things that leave a paper trail or -- they require inference -- sometimes it is something hidden in plain sight. benno: and also, the penalty for removal based on the senate conviction is not going to jail, it is just that you are out of office. akhil: and it leads to disqualification from all future office holding.
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and the only people impeachable our officeholders and former officeholders. so i am not impeachable because i have never held an office. philip, i think he is impeachable, and he could be disqualified from holding any office of honor, trust or profit in the future. and even though he is out of office, the reason he would be impeachable is that we wouldn't want somebody won a nanosecond ahead of the impeachment to gavel coming down on conviction to be able to escape the qualification. as well as for removal. so i would say that former officers are impeachable, but not mere private citizens. philip: i may be taking this too personally. [laughter] akhil: it is not just about you. [laughter] benno: would you two comment on the relevance of the emoluments clause?
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as you know, this is one area where people have made accusations against the current president, that he is receiving emoluments in the form of business for his properties from foreign governments, from others -- philip: if you take it as an experiment that a president is receiving substantial amounts of income from foreign governments, just on assumption, that in itself does not strike me as a serious crime against the vitality of the state. it makes the recipient look unsavory, but it doesn't seem to me, to discredit or disable the whole constitutional enterprise. which is what is contemplated by impeachment.
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akhil: the word "emolument" is such an interesting word, such an 18th-century ring to it. sometimes we miss other words in a sentence which are important to remember. -- no person holding any office, of profit or trust in the united states shall without the consent of congress accept of any emolument from any other president, king of any other state. so congress can, if it wants to, say, "it is ok by us." to ask theimportant question whether the president's party controls both houses of congress. just saying. [laughter] >> who presides over the senate in a trial of impeachment of a
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federal judge for example, the vice president? akhil: the vice president. aaron burr, when he is being tried, he keeps his job because the judge of the senate vote not to impeach him. benno: here is a question about a historical episode. are we certain that if nixon and had not resigned, he would have been impeached by the senate? philip: i am certain about as i am of any other event, it was forestalled by resignation, yes. akhil: and barry goldwater goes
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to the oval office and tells him that he has less than 10 votes in the senate. benno: here is a question. you think the obstruction of justice can fit the term "high crime or misdemeanor" and be in impeachable offense? philip: yes, i do. sometimes we hear people say that the attorney general is the chief law enforcement officer. i bet you heard that bandied about. that is not right. the constitution does not provide for an attorney general. congress could abolish the office of attorney general. who would be the chief law enforcement officer then? but they cannot abolish the presidency. a president is the chief law enforcement officer in our constitution. imagine the chief law enforcement officer taking pain
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to obstruct the conduct of the law of the united states. it seems to go to just the thing that the framers and ratifiers had in mind, because it is unique to the office in itself. you are using the powers of the frustratedisable and the powers of the government. akhil: and in fact, the best charge against andrew johnson was not that the he violated the act, which was unconstitutional in itself when it said the president cannot fire his secretary of war, stanton, without getting the approval of congress. i have always thought that the soundest article of impeachment against johnson was the last one. that basically said, you are
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trying to frustrate systematically the enforcement of the statutes in the south. that is not faithful execution of the office of the united states. always thought that was actually the best article of impeachment. but they did not have to thirds for that either. benno: we know from a historical note, or at least if we think they are accurate, that at the constitutional convention, hamilton and madison both responded to the charge, that having a unitary executive as president, president of only one person rather than a committee, that that was on the road to monarchy. and they both replied that -- with the four-year elections, you could vote the scoundrels out, and impeachment was a guardian against a president assuming the status of a monarch.
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we know in the ratification debate as well, that concerns about the executive becoming too powerful in several states were answered, again, by citing the impeachment clause as well as the frequency of elections, so that in the constitutional forming age, impeachment was a rather important part of the overall structure that would keep the executive power in check. akhil: it is huge. we are coming to the end, but it is such a big point. some of the biggest things hide in plain sight. think about it. they are reacting to the world -- when they were schoolboys, it was a monarchy. and here are the two basic features about the monarchy: you
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don't pick the guy, and you can't get rid of him except by chopping his head off. that is the english civil war and revolution. and now, oh, you will be able to pick him up front, and he has to be subject to periodic reelection, and if he misbehaves, you have a democratic way of ousting him that does not require you to chop his head off or claim that he has abdicated their so, james the first, england doesn't have a good way of dealing with someone who is unfit if you don't have a front end check of election. hamilton emphasizes this in the federal papers. that is the difference between america's presidency and britain's monarchy. philip: and i wanted to add to that, if you look around the
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world, you see presidents who, if they lose or abort an election, they simply refused to leave office. i think it is a point of great pride in this country that in the middle of the civil war, we held an election right on time in the middle of world war ii. akhil: and lincoln, as late as august of 1854 things he is going to lose. he gets every cabinet officer to notarize it, and what they are , that if weis plan lose the election, we will do our best to win the war until the end of our four-year term and then we will hand over the keys to the next fellow and it is up to him, then. >> we are the only democracy that has elections during wartime. akhil: he was about to tell you about what the brits did, philip. philip: it was madison during the war of 1812 foo held at the
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precedent and that every four years, there is an election, even if we are at war. philip: in britain, october 31 1945, churchill gives a speech that nobody under 21 has voted for a member of parliament -- they suspended elections between 1935 and 1945, basically. that is what they do. and we hold elections on time. >> and yet, if impeachment was such an important part of the structural debate during the convention and ratification process, are you surprised that we've had only three instances of presidential impeachment in our history? philip: not really. benno: we have had a lot about
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-- we have had a lot of bad presidents. [laughter] philip: i think it has sanctioned as we promised the ratifiers. it really succeeds when it gets parties, senators and congressmen, and presidents to obey the will of law. it doesn't succeed it just when it is invoked and carried to conviction. it succeeds when it deters, -- i know we are about to close, but i just wanted to make this one point --we began talking about how impeachment is a matter of law, not a matter of politics, and how when party divisions result in a impeachment votes, we are suspicious of them because they do not look ordinary. someday, our grandchildren, great-great-grandchildren, some of our successors, will have more perspective than we do on what our greatest contribution,
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the legacy of this country will be. i am convinced that it will be our adherence to putting the state under law. there is really nothing more precious than that. it was rare and among modern states unprecedented when we did that as a modern state. it is not just a fixation of law professors and lawyers. following the rule of law in the greatest matters as well as in the smallest, is something that we want to insist on in this country. it is not just something that we owe ourselves or each other, as a matter of self respect, it is something we all the people who come after us, because of generations who bequeathed us this system have suffered so much to keep that tradition alive and make sure it florist.
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benno: ladies and gentlemen come our time is up. [applause] i would like to thank philip and akhil. two great authorities and dear once again before you leave, we want to invite you to join us for the book signing. thank you again for moderating. [applause] thank you all. [captions copyright national cable satellite corp. 2018] which is responsible for its caption content and accuracy. visit] you are watching american history tv. $40 on american history every weekend. as c-spanon twitter history for information and
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capable to latest history news. announcer: monday night on the communicators, nyu professor scott galloway talks about the power of the largest tech companies in the u.s. with his book. before, the hidden dna of amazon and google. >> if you think about who knows you, your wife, your kids, your therapist, i would argue the entity that knows you is google. google knows you are about to get engaged, you're contemplating divorce, what ailments you have, ailments you're worried about having exposed to sell to. google is the real you. google sees all of your intentions and how those intentions will translate and action. these organizations know where we are, what we are infected with, our feelings, intentions
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and we have openly invited them into the brightest and darkest points of our lives. announcer: watch the communicators monday night 8 p.m. eastern. on c-span2. announcer: up next, on the civil war, caroline janney looks at antietam battlefield during the 1880's to early 1900. she argued veterans had different views on what reconciliation meant and if the battle of antietam was a catalyst for the emancipation proclamation. it was part of a conference on antietam at shepherd university. mr. carmichael: it's my pleasure to introduce this morning caroline janney. she is the director at the university of virginia and holds the john now professorship in american civil war. she just started this fall.


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